Weekly Case Summaries: May 14, 2010

Texas Courts of Appeals

Ex parte Franklin - 9th COA

05/05/10 : Cite Nos. 09-09-00320/00321-CR

Issue:

Should the trial court have held an evidentiary hearing on defendant's Art. 11.072 claim that he was actually innocent of aggravated sexual assault?

Holding:

Yes; both parties filed conflicting affidavits from the complainant, and the credibility of newly discovered evidence of actual innocence should be tested at a hearing when, as here, the trial judge did not preside at the original proceedings placing defendant on deferred adjudication. Read Opinion.

Dissent:

The complainant's second recantation disavowing her first recantation is enough to deny a hearing.

Commentary:

This case shows the delicate balance in protecting a child from being manipulated into a recantation. The affidavits clearly show that the child recanted only because of a promise of financial support and that the abuse DID HAPPEN. The majority incorrectly converts Cochran's concurring opinion into a majority view as to when a live hearing with witnesses is required. Perhaps the CCA will correct this improper extension of the law. Meanwhile, isn't anyone going to prosecute the defendant for tampering with a witness? If a live hearing takes place, how about putting the defendant on the witness stand and subjecting him to cross-examination?

State v. Williams - 14th COA

05/06/10 : Cite No. 14-09-00353/00354/00355-CR

Issue:

Did the trial court properly grant a motion to suppress where the male officer-seeking to avoid a pat-down because the suspect was female-instructed the well-endowed passenger to shake out her bra so he could determine if she had a knife?

Holding:

Yes, the male officer-or a female officer who was later present at the scene-could have conducted a less intrusive pat-down search for officer safety; anything more was excessive, and thus the fruits of that overbroad search are inadmissible. Read Opinion.

Concurrence:

The record is not developed enough to permit the appellate court to hold otherwise. Read Concurrence.

Commentary:

How is having the defendant briefly shake out the bottom of a bra more intrusive that having a female officer conduct a pat down of large bosoms? Wonder if this would have come out differently if the whole thing had been videotaped?



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